UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Shawn Kerner
v. Civil No. 16-cv-209-LM
Opinion No. 2017 DNH 048
ConServe
O R D E R
Shawn Kerner brings suit against ConServe, alleging that it
violated federal consumer protection laws by placing harassing
telephone calls to her in an effort to collect a debt. ConServe
moves for summary judgment on Kerner’s claim under the Telephone
Consumer Protection Act, 47 U.S.C. § 227, arguing that Kerner
consented to its calls. Kerner objects.
Legal Standard
Summary judgment is warranted where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
2016). “An issue is ‘genuine’ if it can be resolved in favor of
either party, and a fact is ‘material’ if it has the potential
of affecting the outcome of the case.” Xiaoyan Tang,
821 F.3d
at 215 (internal quotation marks and citations omitted). At the
summary judgment stage, the court draws “all reasonable
inferences in favor of the non-moving party, but disregard[s]
conclusory allegations, improbable inferences, and unsupported
speculation.” Fanning v. Fed. Trade Comm'n,
821 F.3d 164, 170
(1st Cir. 2016) (internal quotation marks omitted), cert.
denied,
85 U.S.L.W. 3324 (U.S. Jan. 9, 2017). Where the party
moving for summary judgment “bears the burden of proof on an
issue, [it] cannot prevail unless the evidence that [it]
provides on that issue is conclusive.” E.E.O.C. v. Union
Independiente de la Autoridad de Acueductos y Alcantarillados de
Puerto Rico,
279 F.3d 49, 55 (1st Cir. 2002) (internal
quotations omitted).
Background
This case concerns the repayment of student loans that
Kerner obtained from the United States Department of Education.
The final promissory note that Kerner executed in connection
with her1 loans included a provision providing that she:
[A]uthorize[s] my schools, ED, and their respective
agents and contractors to contact me regarding my loan
request or my loan, including repayment of my loan, at
the current or any future number that I provide for my
cellular telephone or other wireless device using
1 The complaint refers to Kerner as a female. See Doc. no.
1. Kerner’s brief opposing summary judgment, however, refers to
Kerner as a male. See Doc. no. 17. Consistent with the
allegations in the complaint, the court will refer to Kerner as
a female.
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automated dialing equipment or artificial or
prerecorded voice or text message.
Doc. no. 12-3 at ¶ 8.
Around August 31, 2015, ConServe was assigned Kerner’s
loans for the purpose of debt collection. It is undisputed that
Kerner was in default on the loans before they were assigned to
ConServe. ConServe first contacted Kerner about the debt on
September 22, 2015, calling her at work. During that call,
Kerner gave ConServe agents her cell phone number and requested
that ConServe contact her at that number. Six days later,
Kerner again gave ConServe her cell phone number and granted it
permission to contact her at that number.
Kerner contends that at some point after requesting that
ConServe contact her on her cell phone, she told ConServe to
stop contacting her. Kerner further asserts that, despite
making this request multiple times, ConServe continued to call
her one to two times per day.
Discussion
Kerner brings claims under the Fair Debt Collection
Practices Act and the Telephone Consumer Protection Act
(the “TCPA”). ConServe moves for summary judgment on Kerner’s
claim under the TCPA, arguing that the record demonstrates that
it obtained consent to call Kerner on her cell phone. In
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response, Kerner argues that she revoked consent for ConServe to
call her on her cell phone.
The TCPA is designed “to protect individual consumers from
receiving unwanted telephone calls placed through automatic
dialing systems.” O'Neal v. Silverleaf Resorts, Inc., No. CV
15-13848-RWZ, 2016 WL 7852644, at *1 (D. Mass. Aug. 15, 2016).
The TCPA makes it unlawful:
[F]or any person within the United States . . . to
make any call (other than a call made for emergency
purposes or made with the prior express consent of the
called party) using any automatic telephone dialing
system or an artificial or prerecorded voice . . . to
any telephone number assigned to a . . . cellular
telephone service . . . .
47 U.S.C. § 227(b)(1)(A)(iii).
Under the TCPA, a consumer who has provided express consent
to receive autodialed or prerecorded calls may later revoke that
consent. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d
1037, 1048 (9th Cir. 2017); Osorio v. State Farm Bank, F.S.B.,
746 F.3d 1242, 1255 (11th Cir. 2014); Gager v. Dell Fin. Servs.,
LLC,
727 F.3d 265, 268-272 (3d Cir. 2013); Himes v. Client
Servs. Inc.,
990 F. Supp. 2d 59, 69 (D.N.H. 2014). The parties
do not dispute and the majority of courts hold that revocation
can be accomplished orally. Osorio,
746 F.3d at 1255-56
(concluding that oral revocation is sufficient under the TCPA);
Buchholz v. Valarity, LLC, No. 4:13CV362 TIA,
2014 WL 5849434,
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at *7 (E.D. Mo. Nov. 12, 2014); Beal v. Wyndham Vacation
Resorts, Inc., 956 F. Supp. 2d 962, 979 (W.D. Wis. 2013); see
also In re Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7966 (July
10, 2015) (“Consumers have a right to revoke consent, using any
reasonable method including orally or in writing.”). “‘Express
consent is not an element of a TCPA plaintiff's prima facie
case, but rather is an affirmative defense for which the
defendant bears the burden of proof.’” Himes,
990 F. Supp. 2d
at 69 (quoting Grant v. Capital Mgmt. Servs., L.P.,
449 Fed.
Appx. 598, 600 n.1 (9th Cir. 2011)).
It is undisputed that Kerner consented to ConServe (as the
Education Department’s agent) calling her on her cell phone with
an automated dialing system or a prerecorded message when she
executed the final promissory note for her loans. It is also
undisputed that Kerner reaffirmed this consent twice in
September 2015 when she provided ConServe her cell phone number
and asked its representative to contact her at that number.
Kerner argues, however, that summary judgment is
inappropriate because she subsequently revoked that consent. In
support, Kerner points to a declaration that she filed in
opposition to ConServe’s motion for summary judgment. Doc. no.
18. In that declaration, Kerner states that she told ConServe
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“to stop calling me for the first time sometime in the Spring
[sic] of 2015.” Id. at ¶ 11. Kerner further states that she
told ConServe “multiple times to stop calling my cellular
telephone following the first request.” Id. at ¶ 12. Finally,
Kerner asserts that ConServe continued to call her “one to two
times per day” after she made these requests and that some of
those calls “included messages and computerized voices, not the
voice of a real person.” Id. at ¶ 9, 13.
In response, ConServe contends that the court should not
credit Kerner’s affidavit because it is “self-serving,” based on
“improbable inferences, conclusory allegations or rank
speculation,” and lacks sufficient detail. Doc. no. 20 at 3.
In addition, ConServe argues that Kerner’s affidavit is
contradicted by its record evidence, which shows that ConServe
did not take over collection duties on Kerner’s loans until
August 31, 2015.
“An affidavit or declaration used to support or oppose a
motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify
on the matters stated.” Fed. R. Civ. P. 56(c)(4). Under this
rule, “a party's affidavit may be self-serving and yet, still
present genuine issues of fact if it contains relevant
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information of which the party has first-hand knowledge.”
Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 315 (1st
Cir. 2016). An affidavit or declaration is not sufficient to
defeat summary judgment, however, if it “merely reiterate[s]
allegations made in the complaint, without providing specific
factual information made on the basis of personal knowledge.”
Id. Further, an affidavit or declaration based on “improbable
inferences” or “conclusory allegations” is likewise insufficient
to defeat summary judgment. Cordero-Soto v. Island Fin., Inc.,
418 F.3d 114, 120 (1st Cir. 2005).
Here, Kerner’s declaration recounts what she told ConServe
representatives during telephone conversations with the company.
That is information that is plainly within Kerner’s personal
knowledge. Moreover, Kerner’s assertions concerning what she
told ConServe’s representatives are not conclusory or
speculative. Rather, those assertions are first-hand
recollections of facts, none of which contain any speculation or
unsupported inferences. Black's Law Dictionary (10th ed. 2014)
(defining “conclusory” as “[e]xpressing a factual inference
without stating the underlying fact on which the inference is
based”). Because Kerner’s declaration contains relevant
information and is based on personal knowledge, the court will
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consider it for summary judgment purposes. Garmon, 844 F.3d at
315.
ConServe also contends that Kerner’s affidavit lacks
sufficient detail, citing Fleet Nat’l Bank v. H & D Entm’t Inc.,
96 F.3d 532, 540 (1st Cir. 1996). Fleet, however, is not on
point. In Fleet, the defendant opposed summary judgment by
relying on an affidavit asserting the parties had “specific
discussions” that adopted an alternative and extracontractual
understanding.
Id. at 540. The Fleet court concluded that the
affidavit’s statement concerning the parties’ purported
understanding was “conclusory” because it did not contain
specific facts about the discussions, including the dates they
occurred, the names of the participants, or a “single specific”
about the contents of the discussions.
Id. Unlike the
affidavit in Fleet, Kerner’s affidavit does not assert a
conclusion dependent on multiple unstated facts. It asserts her
first-hand knowledge of a critical fact: that she told ConServe
to stop calling her. Therefore, Fleet is inapplicable.
ConServe also argues that Kerner’s affidavit cannot defeat
summary judgment because the documentary evidence contradicts
Kerner’s assertions. In support, ConServe argues that its
records show that it did not begin collecting on Kerner’s loans
until August 2015. This, ConServe contends, demonstrates that
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“no cause of action exists against ConServe for violation of the
TCPA” because Kerner’s affidavit states that she first told
ConServe to stop calling in the spring of 2015. ConServe’s
argument, however, ignores a crucial detail in Kerner’s
affidavit. Kerner asserts that after her first request, she
told ConServe “multiple times to stop calling [her] cellular
telephone.” Doc. no. 18.
Taking this evidence in the light most favorable to Kerner,
as the court must do at this stage, a reasonable factfinder
could conclude that Kerner validly revoked her consent after the
September 2015 calls. Put another way, ConServe has failed to
demonstrate that the evidence it has proffered on the issue of
consent is conclusive. Accordingly, ConServe is not entitled to
judgment as a matter of law on Kerner’s TCPA claim.
Conclusion
For the foregoing reasons, ConServe’s motion for summary
judgment (doc. no. 10) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 16, 2017
cc: Charles W. Grau, Esq.
Brendan H. Little, Esq.
Angela K. Troccoli, Eesq.
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